The U.S. Army Corps of Engineers (Corps) is the largest provider of water-based outdoor recreation in the nation with 422 lake and river projects in 43 states. More than 90 percent of these recreation areas are located within 50 miles of a major metropolitan center.
In particular, the St. Louis District of the Corps operates and maintains five lakes and their associated recreational areas. These lakes, which serve a variety of purposes ranging from flood protection and recreation to potable water supply and hydroelectricity, collectively average more than 15 million visitors a year. One of these five lakes operated and maintained by the St. Louis Corps District is Lake Shelbyville in central Illinois.
Beginning operation in 1970, Lake Shelbyville was constructed for flood control in the Kaskaskia River basin. The 11,000-acre lake and its surrounding uplands offer a wide variety of outdoor recreational activities, including boating, swimming, camping, fishing, hunting, hiking, biking, golfing and horseback riding.
At normal pool, Lake Shelbyville averages 16 feet in depth, with a maximum depth of 67 feet. Islands, coves, peninsulas and inlets create 250 miles of wooded shoreline, which extends 17 miles from the dam at Shelbyville. Development of the shoreline has been intentionally kept to a minimum in order to preserve the lake’s natural features and scenic vistas throughout its length.
At Lake Shelbyville, normal summer pool is 599.7 feet above sea level and winter pool is 594.0 feet above sea level. Water levels in excess of the flood-stage benchmark of 599.7 feet above sea level would be considered flood waters in Lake Shelbyville. On April 3, 2014, the Lake Shelbyville website reported that the boat ramps were open and the water level of the lake was at 594.45 feet above sea level.
As described below, the level of the lake is legally quite significant in determining the availability of immunity from liability for water-based recreational injuries under the federal Flood Control Act. Specifically, when the water level in a federal flood-control lake is below flood stage, immunity under the Flood Control Act would not apply.
Absent immunity under the Flood Control Act, significant limited immunity might still be available to the federal government under the discretionary function exception to the Federal Tort Claims Act (FTCA) and the state recreational use statute in the jurisdiction where the injury occurred. However, in the Kibler case described herein, given the applicability of immunity under the Flood Control Act, it was unnecessary for the federal district court to consider such statutory alternatives. Moreover, even in the absence of any statutory immunity, a strong argument could still be made that a recreational boater had assumed the risk of slipping and falling when wading onto a closed submerged boat ramp in a lake. Similarly, in the case described below, there was no need for the federal district court to consider any aspect of negligence liability, including the assumption of risk defense, once the court held immunity under the federal Flood Control Act applied.
Given the sheer size of the site and volume of public recreational use at Lake Shelbyville, water-related accidents and injuries are inevitable at this Corps lake site. Despite the inevitability of such water-based recreational injuries, liability is still the exception rather than the rule. In particular, as illustrated by the Kibler opinion described herein, under the Flood Control Act, the federal government is generally immune from any liability for water-related recreational injuries when the injuries are attributable to flood waters. In the case of Lake Shelbyville, lake waters in excess of 599.7 feet above sea level would be considered flood waters.
Slip Sliding Away
In the case of Kibler v. United States of America, 2014 U.S. Dist. LEXIS 35785 (3/18/2014), plaintiff Scott Kibler was injured when he slipped on a boat ramp owned, operated and maintained by the defendant Army Corps of Engineers at Lake Shelbyville in Moultrie County, Illinois.
On the afternoon of July 19, 2009, Kibler drove his vehicle, trailer and boat, along with his wife and five minors, to the high-water boat ramp at the Forrest “Bo” Wood Recreation Area at Lake Shelbyville. The Bo Wood Recreation Area did not have a boat dock, and Kibler waited in line for about 30 minutes to launch his boat on the high-water boat ramp. At that time, no one was using the nearby low-water boat ramp to launch boats, because it was under water. From his position on the high-water boat ramp, Kibler could see that the water came all the way up the primary low-water boat ramp.
At the time of Kibler’s injury, the lower boat ramp had been closed since May 17, 2009, after it became submerged by flood water being retained in Lake Shelbyville. With the primary low-water boat ramp submerged, it became necessary for the Corps to open the high-water boat ramp to the public. At the time, flood waters in the lake were 11.82 feet over the flood-water benchmark of 599.7 feet above sea level.
After launching his boat from the high-water boat ramp, Kibler intended to wade through the water on the low-water boat ramp before swimming out to his boat. In so doing, Kibler slipped and fell on the submerged low-water boat ramp, apparently striking his head. Waiting in the boat, Kibler’s wife saw him lying facedown on the submerged ramp in three to four feet of water. Several persons tried to come to Kibler’s rescue, but they were seen falling and sliding before hitting the water. Eventually, two individuals were able to get down on all fours, sliding back on all fours and crawling to get Kibler. Kibler was eventually rescued and pulled out of the water.
If the flood waters had not been in Lake Shelbyville on the day of Kibler’s injury, the concrete low-water primary boat ramp would have been dry and there would not have been any slick materials on the portion of the ramp where Kibler fell. At flood stage, the water had incrementally coated the lower boat ramp with slick natural substances that remained slick even when the water receded down the ramp.
As part of its flood-control function, the water above the dam in Lake Shelbyville was retained at an elevated level to avoid significant flooding downstream on the Kaskaskia River. A hydraulic engineer for the Corps testified that the water that caused the submerged boat ramp to become slick was flood water. Accordingly, in the opinion of the Corps engineer, flood water in Lake Shelbyville had produced the slick boat ramp that caused Kibler’s accident.
Unlike Lake Shelbyville, a natural lake would not have had a dam that could artificially impound or release water. While water levels in nearby natural recreational lakes would only fluctuate a couple of feet, flood-control management in Lake Shelbyville resulted in constant fluctuations of more than 14 feet due to the retention and release of flood waters through the dam. Absent such significant fluctuations in water levels like those in Lake Shelbyville, a boat ramp in a natural recreational lake would not have been covered in slick residue and slime due to being constantly covered by flood waters.
Flood Control Act
Initially, the Corps claims division denied Kibler’s claim for damages caused by his slip-and-fall injury on the pavement of the Lake Shelbyville boat ramp. In his claim, Kibler alleged that the Corps had a legal duty to maintain the boat ramps at all times, providing a safe means of ingress and egress to their boats on the lake. In response, the Corps claimed immunity from any liability for Kibler’s claims of negligence based on the Flood Control Act. In so doing, the Corps claimed the slick residue, which led to Kibler’s injuries, had been caused by flood waters in Lake Shelbyville.
In pertinent part, the Flood Control Act provides that “no liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place” (33 U.S.C. § 702c). In the case of United States v. James, 478 U.S. 597, 606, 106 S. Ct. 3116, 92 L. Ed. 2d 483 (1986), the U.S. Supreme Court found Congress had used the broadest and most emphatic language in section 702c to establish that “sovereign immunity would protect the Government from ‘any’ liability associated with flood control.” Accordingly, the court held “the terms ‘flood’ and ‘flood waters’ apply to all waters contained in or carried through a federal flood-control project for the purposes of or related to flood control, as well as to waters that such projects cannot control.” Subsequently, in applying James, lower federal courts had generally held all the waters in any federal flood-control project were “flood waters,” whether or not a particular lake was at flood stage. In so doing, the issue was simply whether flood-control activities were a substantial factor, increasing the probability of a particular injury. If so, under James, flood-control immunity would apply. (See: “Does U.S. Flood Control Immunity Include Reservoir Recreation?” January 1989 Law Review in Parks & Recreation).
In 2001, the U.S. Supreme Court revisited James in the case of Central Green Co. v. United States, 531 U.S. 425, 121 S. Ct. 1005, 148 L. Ed. 2d 919. In Central Green, the Supreme Court significantly limited the scope and applicability of immunity under section 702c of the Flood Control Act. Specifically, in Central Green, the Supreme Court held that federal courts “should consider the character of the waters that caused the relevant damage.” As a result, flood-control immunity would no longer apply to “every drop of water” in a flood-control project at all times of the year. On the contrary, Section 702c flood-control immunity would only apply to injuries and damages directly attributable to flood waters released or retained for the purpose of flood-control activity. (See: “Flood Control Immunity in Recreation Evaporating,” May 2011 Law Review in Parks & Recreation). In this particular instance, the Corps contended that all of the waters in Lake Shelbyville above flood stage (i.e., 599.7 feet above sea level) were exclusively flood waters being retained in the lake exclusively for flood-control purposes. Moreover, on the day of Kibler’s accident, the Corps noted that waters in Lake Shelbyville exceeded 609.5 feet, a level where flood waters would come up to the top of the low-water primary boat ramp. Further, the Corps claimed waters in Lake Shelbyville had been retained at levels exceeding flood stage and not released through the dam to prevent flooding downstream.
Accordingly, the specific issue before the federal district court was whether the slippery surface, which caused Kibler’s injuries, was a “direct result of flood waters maintained in the lake for flood-control purposes.” In this particular instance, the federal district court found flood waters had “incrementally coated that portion of the ramp with extremely slick natural substances that remained slick and in place even after the flood waters receded down the ramp.” Further, the court found “flood water covering that portion of the low-water boat ramp causing it to become slick and slippery was not mixed with any nonflood waters.” As a result, the court concluded that the slippery surface that caused Kibler’s injury on the low-water boat ramp was “directly caused by the flood waters in Lake Shelbyville.”
In this instance, Kibler had argued that flood-control immunity should not apply because the probability of his injury was not increased by the Corps’ flood-control activities when compared with a natural lake devoted to recreational use. According to Kibler, the natural accumulation of algae or silt was not unique to flood-control lakes used for recreational purposes, like Lake Shelbyville. On the contrary, if not properly maintained, Kibler contended that slippery slime and algae could accumulate on any boat ramp, regardless of whether the lake is a natural recreational lake or a flood-control lake. The federal district court rejected this argument.
In the opinion of the court, Kibler’s injuries were indeed caused by flood waters. Specifically, as part of its flood-control function, the Corps had retained water in the lake to avoid flooding downstream. In so doing, flood waters had coated the low-water primary boat ramp with the slick and slippery substance that caused Kibler’s injury.
As a result, the federal district court held that Section 702c immunity under the Flood Control Act applied because Kibler had been injured as a result of flood waters retained in Lake Shelbyville for flood-control purposes. In reaching this conclusion, the court relied on declarations by the Corps’ hydraulic engineer that the character of the waters that caused Kibler’s injuries were flood waters, and that “the purpose behind their presence in Lake Shelbyville was to control flooding.” In so doing, the court found that Lake Shelbyville was at flood stage on the day of Kibler’s injury, and these flood waters were being managed and retained at flood stage to avoid downstream flooding. As a result of such flood-control activity, the low-water primary boat ramp had become coated with the slick and slippery substances that caused Kibler’s injury.
Based upon available immunity under Section 702c of the Flood Control Act, the federal district court, therefore, granted the Corps’ motion for summary judgment, effectively dismissing Kibler’s negligence claims.
James C. Kozlowski, J.D., Ph.D., is an attorney and Associate Professor in the School of Recreation, Health and Tourism at George Mason University. Webpage with link to Law Review articles archive (1982 to present).